Legal and Historical Precedent Are on Obama's Side
"Appointments Clause" of the U.S. Constitution authorizes president to make recess appointments
January 6, 2012
Yes, President Obama's recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau is constitutional. The "Appointments Clause" of the U.S. Constitution authorizes the president to fill positions with temporary appointees while the Senate is on recess:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Because he is a temporary, recess appointee, Cordray's term will expire at the end of 2013 rather than 2016.
One might argue that the president can use the appointment power only for positions that open up during a recess (it's ambiguous whether "that may happen" modifies only the word "Vacancies" or also the phrase "during the Recess"). But no one is making that argument. Since the country was founded, the legislative and executive branch have recognized recess appointments to positions that became available while the Senate was in session. George Washington made that type of appointment in 1789. This is for good reason. If the point is to make sure that important positions can be filled quickly, then why permit a recess appointment to a critical position that opens up the day after the Senate adjourns but not one that opens up a day earlier?
Instead, some claim that the current recess--which they say is three days long--is too short for recess appointments. This argument is mistaken for two reasons. First, there's a strong argument that the current recess is roughly five weeks long, not three days. The Senate left town in December and won't resume business until January 23. A single senator has shown up once every three days to bang the gavel, declare the Senate in session, then declare it adjourned. Despite these theatrical performances, the Senate isn't actually open for business. It is not available to fulfill its "advice and consent" role. So if a court ever hears a challenge to Cordray's appointment, it might decide that the Senate was really on a five-week recess when he was appointed.
But even if a court viewed the current recess as only three days long, the opposition still falls short. As you might have noticed, the Appointments Clause doesn't set a minimum time period for a recess. A federal appeals court that looked at the question recognized the obvious: The Constitution doesn't set a minimum time period, and courts shouldn't make one up. In addition, two other presidents--Harry S. Truman and Theodore Roosevelt--have made appointments during recess of three days or shorter. Legal and historical precedent are both on President Obama's side.